A bill that would make major changes to the New Mexico Medical Malpractice Act is headed to the governor’s desk after surviving the scrutiny of a crucial Senate committee and then receiving overwhelming support on the Senate floor late Tuesday night.
House Bill 99 — which puts caps on the amount of punitive damages juries can award in malpractice cases — had become one of the most closely watched measures of the 30-day session. Proponents said it was a critical step to reverse a severe doctor shortage, while opponents argued it would leave malpractice victims with no path to justice without improving the state’s supply of providers.
Gov. Michelle Lujan Grisham, who supports the proposal, had insisted she would call a special session if the Legislature failed to pass a substantial overhaul to the malpractice law.
The final passage of HB 99 was preceded by controversy over amendments added by the Senate Judiciary Committee earlier in the day. The measure’s sponsor argued the changes would have rendered the bill ineffective at achieving a goal of reducing providers’ insurance premium costs.
The Senate passed the bill 40-2 after stripping the Senate Judiciary Committee’s amendments in a vote of 25-17. Sens. Linda López, D-Albuquerque, and Shannon Pinto, D-Tohatchi, cast the only votes in opposition to the bill.
“Today’s Senate Judiciary Committee was not a hearing,” said Sen. Crystal Brantley, R-Elephant Butte, who led the successful effort to strip the amendments. “It was a hijacking.”
Brantley accused the lawyers on the panel of inserting “poison pills” into the bill and prioritizing the interests of trial lawyers over patients.
“Unfortunately, a small group of plaintiffs’ attorneys are now holding over 2 million New Mexicans hostage,” Brantley said, adding the attorneys knew the amended bill would “keep them rich by passing it or keep them rich by not passing it.”
Sen. Katy Duhigg, D-Albuquerque — one of the lawyers on the Senate Judiciary Committee — said the amendments were necessary to address legal problems with the bill.
“These are complicated issues … and our judges and juries need as much clarity as possible,” she said.
The state’s current medical malpractice law caps other types of damages in malpractice cases. Supporters of HB 99 have said the caps on punitive damages are necessary, too, to reduce doctors’ insurance premiums and lower their risk to practice in the state, which could help New Mexico recruit and retain physicians.
But Duhigg and others argued insurance premium costs wouldn’t decline if HB 99 was signed into law.
“We are representing to the public that malpractice insurance premiums will go down, when that is not what history shows, and that access to care will go up, when that is not what history shows,” Duhigg said during a Senate Judiciary Committee debate. She cast the lone vote on the committee against advancing HB 99 to the Senate floor.
“We are abandoning New Mexicans who have been injured as a result of medical malpractice,” she said.
HB 99 soared through the House on Saturday before reaching the Senate Judiciary Committee, where it faced two hourslong sessions of debate Monday and Tuesday. Lawmakers on the panel — including several attorneys who have been involved in malpractice complaints — faced about a dozen proposed amendments and adopted three.
One change altered the definition of the word “occurrence”; the original bill used a definition that limited each incident of alleged malpractice to one claim. The altered version would have allowed multiple complaints over actions taken by providers in a single incident.
The second amendment would have changed the way medical costs were calculated in a malpractice claim. Sen. Joseph Cervantes, a Las Cruces Democrat and a personal injury attorney whose firm represents clients with malpractice cases, argued the original language of the bill would upset a long-held legal rule and decades of precedent.
“You and I will disagree about that, but I’m right,” Cervantes, the committee chair, told Rep. Christine Chandler, the bill’s sponsor.
Cervantes ultimately voted to advance HB 99 to the Senate floor — but he voiced concerns the bill will lead to more litigation.
“This will keep a lot of us lawyers busy for a very long time,” he said.
At least four provisions of HB 99 — including the bill’s definition of “occurrence” — were expected to help reduce insurance premiums, Chandler, a Democrat from Los Alamos, told the Senate Judiciary Committee.
The committee’s definition of “occurrence,” she said, “will not achieve” the bill’s goal of reducing premiums.
About HB 99
HB 99 was the subject of weeks of behind-the-scenes negotiations between lawmakers, the Governor’s Office, attorneys, hospital representatives and physicians.
Most of the amendments considered by the Senate Judiciary Committee would have changed provisions previously agreed upon in negotiations, Chandler said.
“I find that extremely disappointing,” she added.
Similarly, Brantley said on the Senate floor the bill was the product of negotiations between multiple parties and predicted the amendments would lead to the governor’s veto and a special session.
“The reality is, we know the form of the bill in which it was received has consensus,” she said.
Under HB 99, punitive damages would be limited to around $900,000 for independent doctors, $1 million for independent outpatient clinics and $6 million for locally owned and operated hospitals — the same caps set for most compensatory damages in medical malpractice cases.
The bill would create a higher tier for claims against large hospitals and hospital-controlled outpatient facilities, capping punitive damages at two and a half times the limits the bill establishes for local hospitals.
A third amendment adopted by the Senate Judiciary Committee took aim at this tiered system, but lawmakers argued the change would retain the tiered damage caps while eliminating a separate legal issue.
Disclosures from lawmakers
Many of the lawyers on the Senate Judiciary Committee started their discussion on HB 99 with disclosures about their potential connections to the legal field and the contents of the bill.
Sen. Peter Wirth, D-Santa Fe, acknowledged he serves as a personal representative in wrongful death cases and handles wrongful death cases in his mediation practice.
Both Cervantes and Duhigg noted they work directly in medical malpractice law.
“I work in this area; I do medical malpractice law,” Duhigg said.
Sen. Moe Maestas, D-Albuquerque, said he’s worked as a lawyer for nearly 30 years and is a member of the New Mexico Trial Lawyers Association, which has vocally opposed efforts to change the medical malpractice law.
Still, all four signaled their intention to vote for the bill, saying the legislation would not impact them financially.
“I can’t see any way in which this particular legislation as it’s being proposed right now directly benefits me with any cases I have right now or any outcomes that I would have right now,” Cervantes said.
Duhigg said, “There’s no direct pecuniary benefit to me voting on this bill, so I’ll be voting on it as well.”
Cervantes, Wirth and Duhigg all have open cases seeking punitive damages, according to court records — but because those cases have already been filed, they will not be impacted by the proposed changes to the state’s malpractice law.
Attorneys typically receive a percentage of the awards or settlements in malpractice cases. (Wirth serves as a personal representative in wrongful death cases, not as a plaintiff’s attorney.)
“As a court appointed personal representative, I am paid by the hour. Any statewide changes to medical malpractice law and punitive damages law do not in any way change my fee in a pending or future case,” Wirth said in a statement.
Before the Senate floor debate, several lawmakers also disclosed their work as attorneys or, in a couple of cases, doctors or hospital board members. They all proceeded to take part in the debate and vote, saying the bill would not affect them.
“There’s nothing in this bill that would directly financially impact me one way or the other,” Cervantes said.
Cervantes and Duhigg did not immediately respond to requests for comment on pending cases or the bill’s potential impact on their practices.
“We’re citizen legislators,” Maestas said during the committee hearing. “We vote on stuff that we know about and that may affect our professions.”
Nathan Brown of The New Mexican and Ed Williams of Searchlight New Mexico contributed to this report.
Duhigg said, “There’s no direct pecuniary benefit to me voting on this bill, so I’ll be voting on it as well.”
Wow, that is probably the hardest work the word ‘direct’ has ever had to do.